TMI Blog1965 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... whether these wakfs are affected by the passing of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954). ?hat Act, in common with similar Acts of other States in india abolished from a date notified by the State Government all intermediaries such as proprietors, tenure-holders etc. between the raiyat and the State and vested the estates and the rights of the intermediaries in the State free from all incumberances. Section 3 of the Act provided that the Act was to have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. There were, however, some exceptions and one such exception was that an intermediary was entitled to retain, with effect from the date of vesting, land held in khas under a trust or endowment or other legal obligation exclusively for a purpose which was charitable or religious or both. Notices under s. 10(2) of the Act were issued by the Collectors in charge, Estate Acquisitions, to the respective Mutwallis informing them that after the notification issued on November II, 1954 under s. 4 of the Act there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to sub- section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting-- (i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both land held in khas by such corporation or institution, or person, for such purposes. Section 2(c) defines charitable purpose and s. 2(n) religious purpose . These definitions are: 2(c) charitable purpose includes the relief of poor, medical relief or the advancement of education or of any other object of general public utility; 2(n) religious purpose means a purpose connected with religious worship, teaching or service or any performance of religious rites; If this concession is not available then the estate must vest in the State Government under ss. 4 and 5 of the Act. The former section invests power in the State Government to notify the date from which the estates and rights of every intermediary are to vest in the State free of all incum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the annual net income for the purpose of education of the sons of my sons, sons of my daughters, sons of the daughters of my sons and my great-grandsons (in the male line). The Mutawalli and the Naib Mutawalli in consultation with each other will render help as far as possible to the boy amongst them who will be meritorious and has zeal for education according to his standard of education. If there be any surplus the same will be kept in deposit in the wakf estate for meeting the expenses of education of the future heirs. If after graduation he goes to England, France, Germany, America, Japan, Australia and other progressive countries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible., 20. The provision made for allowances for my aforesaid three sons and my grandson Shriman Abu AIam Prodhan in Schedule (Kha) will vest, after their death in the respective sons and grandsons in the male line equally. If any of them has no son or grandson, in that case after his death if his wife lives and continues to follow her own religion, she will get one-eighth share of the aforesaid allowance as long as she is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noperative by the exhaustion of the beneficiaries and we proceed on the assumption that the families the wakifs do still enjoy the benefits. In these circumstances, the question is whether these trusts can be described as those exclusively for religious or charitable purposes or both. If they can be so described s. 6(1)(i) would exempt them from the operation of the Act; otherwise, in view of the provisions of ss. 3, 4 and 5 the estates of the intermediaries vested in the State on the appointed date. As already stated the provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary. The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there. The exemption is given to Corporations and institutions established exclusively for a religious or a charitable purpose or both but to this kind of eleemosynary foundations no mutawalli in either deed can lay claim. The matter can thus only come in, if at all, within the words of the exempting clause which read: ...... a person holding under a trust or endowment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it stands cannot obviously comprehend such dispositions. But it is contended by Mr. N.C. Chatterjee that in giving a meaning to the expression charitable purposes we must be guided by the notions of Mahomedan Law and he relies upon the observation of Sir George Rankin in Tribune Press Trustees, Lahore v.I.T. Commissioner(1). Mr. Chatterjee claims that provision for the wakif and the wakif's family is a charitable purpose according to Mahomedan Law. In the Tribune case the Judicial Committee was required to interpret s. 4(3)(i) of the Indian Income-tax Act 1922 (XI off 1922). That section provided: (3) This Act shall not apply to the following classes of income:-- (i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in case of property so held in part only for such purpose, the income applied, or finally set apart for application, thereto. In this sub-section 'charitable purpose' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility. In dealing with the will of Sardar Dayal Singh who had constituted a trust to mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms exemption for the wakfs. He relies upon the precept of the Prophet-- A pious offering to one's family, to provide against their getting into want, is more pious than giving alms to beggars. The most excellent of sadkah is that which a man bestows upon his family'. Now it is a matter of legal history that wakfs in which the benefits to charity or religion were either illusory or postponed indefinitely, while the property so dedicated was being enjoyed from generation to generation by the family of the wakif, were regarded as opposed to the rule against perpetuities as contained in the Indian Succession and the Transfer of Property Acts. This was so declared in a succession of cases by the Judicial Committee and the opinion of Amir Ali expressed in his Tagore Lectures as well' as in Meer Mahomed Israeli Khan v. Shasti Churn Ghore(3) and Bikani Mia v. Shukul Poddar(4) was not accepted. These cases are referred to in the three opinions in the High Court and most important of them is Abul Fata Mahomed Ishak and Others v. Bussomoy Dhur Chowdry, and others(5). In that case Lord Hobhouse, while emphasising that Mahomedan Law ought to govern a purely Mahomedan disposition, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the Privy Council decisions on the meaning of charitable purpose as such. We do not say that the English authorities should be taken as the guide as was suggested in soms of these cases at one time. For (1) 44 C.W.N.974. one thing, the law was developed in the Chancery Courts without the assistance of any statutory definition. The earliest statute on the subject is one of 1601 in the forty- third year of the reign of Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another, Courts in England extended these instances to others by analogy and the subject is often rendered vague and difficult to comprehend. A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indian Income-tax Act 1922 already quoted. The observations of Sir George Rankin in the Tribune, case, on which much reliance is placed by the appellants were intended to convey the same caution about English cases which we have sounded here. The Judicial Committee did not intend to lay down that the words of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
